Towards a Theory of Emergent International Conventions: Inducing from the Three-Mile Rule of Territorial Seas

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measurement, and he proposed setting the limit at three miles as a new rule in 1782: “It would appear reasonable ... that without waiting to see if the territorial sovereign actually erects some fortifications, and what caliber of guns he might mount therein, we should fix, finally, and all along the coast, the distance of three miles”.
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Although he has been criticized for misjudging the range
of contemporary cannons, he was aware that this was an unrealistic range, but he proposed it rather to be on the safe side.
Although Galiani clearly intended a three-mile territorial sea as an improvement on cannon range, states soon took it to be established state practice and settled law. Prior to 1793, the newly established United States had three concurrent measures in place. For the purposes of exclusive fishing, they claimed a zone of three leagues; in the peace treaty with Britain following the revolutionary war, they claimed sovereignty over all islands within twenty leagues of the mainland; and in a treaty of peace and friendship with Morocco, they accepted Morocco’s claim to sovereignty within cannon range of her shores.
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In 1793, however, a French frigate captured a
British ship inside Delaware Bay, and when the British protested, the French pressed Secretary of State Jefferson for a definitive statement. The United States was struggling to remain neutral in the conflict, so Jefferson indicated that he would prefer to settle the matter in the future at a conference of relevant powers, but to resolve the matter hastily, he replied that America would claim one league, adding, “This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation”.
103
He
further noted (erroneously) the modesty of this claim, because “...the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea league”. Strikingly, this is an instance of a new state with relatively large latitude in its ability to claim a territorial sea, but it claimed three miles, citing both the equivalence to cannon range and its customary status in state practice despite the fact that this was one of the first instances of such state practice, and Galiani had suggested it as a new rule just over twenty years prior.
New Convention w/ Dubious Pedigree Seeks Obligatory Status
By the end of the 18th century, the three mile rule had both borrowed the sheen of legitimacy lent by the cannonshot rule and had acquired an air of longstanding practice. The fact remains, however, that the use of three miles as the breadth of all-purpose territorial seas was new and not in very broad use, so its spread and the rapid strengthening of its obligatory force as a rule needs to be explained.
The first factor contributing to the reinforcement of the rule’s status was its sponsorship by Britain in the 19th century. Britain was the supreme sea power throughout the century, but especially with the development of capital ships in the 1860s.
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Its status as the predominant naval power is
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101
Quoted in Swartztrauber, The Three Mile Limit, 55.
102
Wilder, The Three-Mile Territorial Sea, 708-709.
103
Quoted in Crocker, The Extent of the Marginal Sea, 636-637.
104
Stanley Sandler, "The Emergence of the Modern Capital Ship," Technology and Culture, Vol. 11, No. 4
(1970), pp. 576-595. Although the large, mastless capital ships with rotating gun turrets did not appear until the 1860s, the Royal Navy had nearly 100 masted capital ships as early as 1815.

Authors: Kamis, Ben.

Page 24 of 27

measurement, and he proposed setting the limit at three miles as a new rule in 1782: “It would appear reasonable ... that without waiting to see if the territorial sovereign actually erects some fortifications, and what caliber of guns he might mount therein, we should fix, finally, and all along the coast, the distance of three miles”.

of contemporary cannons, he was aware that this was an unrealistic range, but he proposed it rather to be on the safe side.

Although Galiani clearly intended a three-mile territorial sea as an improvement on cannon range, states soon took it to be established state practice and settled law. Prior to 1793, the newly established United States had three concurrent measures in place. For the purposes of exclusive fishing, they claimed a zone of three leagues; in the peace treaty with Britain following the revolutionary war, they claimed sovereignty over all islands within twenty leagues of the mainland; and in a treaty of peace and friendship with Morocco, they accepted Morocco’s claim to sovereignty within cannon range of her shores.

British ship inside Delaware Bay, and when the British protested, the French pressed Secretary of State Jefferson for a definitive statement. The United States was struggling to remain neutral in the conflict, so Jefferson indicated that he would prefer to settle the matter in the future at a conference of relevant powers, but to resolve the matter hastily, he replied that America would claim one league, adding, “This distance can admit of no opposition, as it is recognized by treaties between some of the powers with whom we are connected in commerce and navigation”.

further noted (erroneously) the modesty of this claim, because “...the smallest distance, I believe, claimed by any nation whatever, is the utmost range of a cannon ball, usually stated at one sea league”. Strikingly, this is an instance of a new state with relatively large latitude in its ability to claim a territorial sea, but it claimed three miles, citing both the equivalence to cannon range and its customary status in state practice despite the fact that this was one of the first instances of such state practice, and Galiani had suggested it as a new rule just over twenty years prior.

New Convention w/ Dubious Pedigree Seeks Obligatory Status

By the end of the 18th century, the three mile rule had both borrowed the sheen of legitimacy lent by the cannonshot rule and had acquired an air of longstanding practice. The fact remains, however, that the use of three miles as the breadth of all-purpose territorial seas was new and not in very broad use, so its spread and the rapid strengthening of its obligatory force as a rule needs to be explained.

The first factor contributing to the reinforcement of the rule’s status was its sponsorship by Britain in the 19th century. Britain was the supreme sea power throughout the century, but especially with the development of capital ships in the 1860s.